Decriminalisation of homosexuality

The Gay Pride March which was held earlier this month in Georgetown was less significant in terms of what it represented in and of itself, than for the fact that it generated yet again the fundamental debate on the decriminalisation of homosexuality. As on previous occasions religious viewpoints dominated, and it is these, by and large, which have prevented amendments to the statutes over the years despite promises by all the major parties to the LGBT community to reform what the law calls the provisions on “buggery”. While quite a few politicians on all sides (Members of Parliament such as Bishop Juan Edghill excepted) appear to be amenable to legislative change, they fear the power of religious groups, and the possible loss of their votes at election time.

As has been observed several times before in these columns, Guyana is a secular state. It could not be otherwise in a situation where there are a number of faiths existing side by side, and freedom of religion is constitutionally guaranteed. As such, therefore, the laws of this country, which while they must have a moral underpinning, cannot in situations of divergences of opinion simply follow unquestioningly the position of a single set of religious beliefs. Neither, must it be said, are the religions the sole arbiters of what is moral.

Apart from the fact that in modern societies legislation has to cater for any number of situations which were not even dreamt about by the ancient religious texts – the traffic laws come immediately to mind – even where there is a broad convergence of opinion between the state and the various religions about what constitutes a crime, there is often disagreement when it comes to drafting a law about how such crimes should be treated. So, for example, while the faiths and the state are at one in regarding murder and robbery (to take two random examples), as criminal acts, the various churches – or denominations within those churches – might have quite differing views on what punishment should apply in relation to them.

Where that is concerned, Islamic states like Saudi Arabia, for example, accept the Sharia as the basis for their penal code, something which would be unthinkable for various reasons in a state like Guyana, although there are, no doubt, at least some Muslims in this country who believe that ideally speaking it should be introduced here too. Similarly, there may be a few adherents of certain Christian denominations who consider that our secular criminal law has strayed too far from the principles of lex talionis.

The greatest disparities between the faiths or denominations within those faiths, however, come within the area of sexual mores. So, for example, two practising Catholics may not get divorced within the Church, although they could ask the Vatican for their marriage to be annulled. If that is not granted, and they seek and obtain a divorce from the state, it will not be recognised by their Church. But this means nothing to the state. Marriage and divorce are civil acts – although religious representatives are licensed to marry people – and the state is not concerned whether a Church recognises a legal divorce or not; the law does not take its cue from the Church.

It might be added that adultery, for example, is a basis for applying to the court for a divorce – a civil matter – but the state does not consider it as coming within its ambit to punish adultery. In fact, marriage and divorce excepted, the state does not involve itself in heterosexual sexual matters.

There are all kinds of examples of dissimilarities between and within the faiths in the arena of sexual mores, as well as incongruities between them and the secular law, and it would be impossible at this stage – even supposing it were desirable – to impose a uniformity of approach. It is not an argument to say that because a majority of the population is Christian their view of criminalising gay sex should prevail. Even if Christians were in the majority, it could not be assumed that Christians held a monolithic view, but more importantly, even if they were a majority, they would have no right to impose their theological views on everyone else; this is not an issue involving seats in the National Assembly. This is a matter concerning human dignity.

This is not to say that a state should not listen to the views of the churches and take them into account, as it would in the case of other interested parties. And it may be that a particular faith has a compelling moral argument on an issue, as opposed to a narrow church-based one, which the state should take on board. In a general sense, however, the modern state which is not tied to a particular Church or faith will take for its lodestar international human rights conventions and declarations; these are the moral standards by which its legislation is judged, and by which Guyana’s too is judged.

Concepts of human rights and freedoms have various historical antecedents, but in their modern format they have their provenance in the UN’s Universal Declaration of Human Rights dating from 1948, the first article of which says that all human beings are born free and equal in dignity and rights. There have been a number of conventions since then dealing with various aspects of human rights, and Guyana is a signatory to seven major international human rights treaties.

Sexual orientation and gender identity rights are based on rights found within these various covenants, and those seeking a change in the law which decriminalises gay sex between consenting adults have grounded their arguments on them. They are not wrong; the government – using that term to encompass previous administrations as well – is in breach of their human rights, and is flouting commitments which it made when it signed those conventions.

There is no doubt that many individuals have strongly held religious views about keeping the criminalising of homosexuality on the statute books; however, it bears repeating, what applies in the argument in this instance is not deeply held faith-based sentiments, but the international human rights conventions which Guyana has pledged to implement.

No one imagines that those who speak from a religious standpoint are going to change their perspectives in the foreseeable future, and no one will be trying to force them to do so. Their fears about what the LGBT is demanding and will be granted, that they have culled from positions taken at some march held years ago in another country, do not apply here. This latest local campaign is limited, like all the previous ones, to legalising relations between consenting adults behind closed doors; nothing more. Why what consenting adults do in the privacy of their bedrooms should be the business of the various faiths let alone law enforcement is by no means clear. The churches will still have the freedom to advise their own gay members as they see fit.

In April this year there was a court ruling in Trinidad and Tobago saying that laws banning gay sex were unconstitutional. The twin-island Republic, it seems, is ahead of everyone else in the Caribbean.